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2016 Supreme(Mad) 2695
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. DEVADASS, J.
S. Sam Sundar Singh - Petitioner
Vs.
The Inspector of Police, Rathapuram, Tirunelveli District – Respondent
Crl. R.C. (MD) No. 328 of 2016 and Crl.M.P. (MD) No. 4267 of 2016
Decided On : 22-08-2016
For the Petitioner: Mr. K.R. Laxman
For the Respondent:Mrs. S. Prabha Govt. Advocate (Crl.Side)
Headnote:
Criminal Produce Code, 1973 - Section 173(8) – Indian Penal Code, 1860 - Section 302 – Criminal Trial – Offence of Murder – Convicted – Investigation - Kakkum Perumal Nadar, in his land situate in Singara Thope in Rathapuram found an unidentified charred body - On same day, at about 7 p.m. at Rathapuram Police Station, he reported this to Inspector of Police - Inspector commenced his investigation - On 01.10.2009, he altered Section of law to Section 302 I.P.C. and submitted his alteration report to learned Judicial Magistrate – Thereafter he submitted a negative final report to said Magistrate, temporarily treating case as UN undetectable - Learned Magistrate, accepted said report - Subsequently, prosecution seems to have obtained some clue and sought permission of learned Magistrate to re-investigate - Held, Prosecution has to get the judicial order of the learned Magistrate accepting the negative final report of the Investigation Officer by setting it aside by a superior forum and thereafter the Investigation Officer can seek leave of the Magistrate to do further investigation under Section 173(8) Cr.P.C. - In light of above position of law since order of learned Judicial Magistrate, Valliyoor accepting final report of Investigation Officer that case is undetectable is a judicial order, he cannot set aside it on his own and order fresh investigation - Impugned order Set aside - Criminal Revision is allowed.
The accused in Crime No. 129 of 2007 on the file of the Inspector of Police, Rathapuram, Tirunelveli District directed this revision as against the order of the learned Judicial Magistrate, Valliyoor, dated 27.07.2010, passed under Section 173(8) Cr.P.C., directing fresh investigation.
2. On 26.08.2007, at about 5 p.m., Kakkum Perumal Nadar, in his land situate in Singara Thope in Rathapuram found an unidentified charred body. On the same day, at about 7 p.m. at the Rathapuram Police Station, he reported this to the Inspector of Police. The Inspector of Police registered a case of suspicious death in Crime No. 129 of 2007 under Section 174 Cr.P.C.
3. The Inspector commenced his investigation. Collected materials. On 01.10.2009, he altered the Section of law to Section 302 I.P.C. and submitted his alteration report to the learned Judicial Magistrate, Valliyoor. Thereafter, on 21.03.2009, he submitted a negative final report to the said Magistrate, temporarily treating the case as 'UN - undetectable'. The learned Magistrate, accepted the said report.
4. Subsequently, the prosecution seems to have obtained some clue and sought the permission of the learned Magistrate to re-investigate the case.
5. On 27.07.2010, the learned Judicial Magistrate, Valliyoor passed the following order:
“Records perused. Case reopened and the Inspector of Police is permitted to investigate the matter further as contemplated U/s. 173(8) Cr.P.C.”
6. Thereafter, the Investigation Officer reopened the investigation and he is stated to have obtained some materials implicating the petitioner with this case.
7. The learned counsel for the revision petitioner contended that the order already passed by the learned Judicial Magistrate, Valliyoor accepting the negative final report submitted by the Investigation Officer treating the case as UN-undetectable is a 'judicial order'. It cannot be reopened by the learned Magistrate. It can be reopened only after the said order being set aside by a superior forum.
8. In this connection, the learned counsel for the petitioner cited a Division Bench decision of this Court in K.K.S.S. RAMACHANDRAN V. STATE REP. BY THE INSPECTOR OF POLICE, IRUKKANKUDI POLICE STATION, SATTUR TALUK, VIRUDHUNAGAR DISTRICT [2015 (2) MLJ (Crl) 257].
9. The learned counsel for the revision petitioner also contended that under Section 173(8) Cr.P.C., the learned Magistrate has got power to order further investigation, but he has no power to order fresh/re/denovo investigation. Such a power could be exercised only by a superior Court.
10. In this connection, the learned counsel for the revision petitioner cited VINAY TYAGI V. IRSHAD ALI @ DEEPAK [2013 (5) SCC 762].
11. The learned counsel for the revision petitioner would submit that in the circumstances, the impugned order passed by the learned Magistrate on 27.07.2010 directing the police to conduct fresh investigation is against law and whatever follow-up action taken pursuant to such an order is vitiated.
12. The prosecution filed the counter opposing the plea of the petitioner.
13. The learned Government Advocate (Criminal side) submitted that on reinvestigation the accused having been concerned with this case came to light. He is a notorious criminal. He is involved in many cases. In the facts and circumstances the impugned order passed by the learned Magistrate is not flawed.
14. I have anxiously considered the rival submissions, perused the averments made in the revision petition and the counter filed by the prosecution, the impugned order and the decisions cited by the learned counsel for the revision petitioner.
15. We have already given the necessary factual matrix for the disposal of this revision. Let us not duplicate it.
16. On receipt of an information relating to the commission of a cognizable offence, a Station House Officer (S.H.O.), registers a First Information Report (F.I.R.) under Section 154 Cr.P.C. Thereafter, under Section 156 Cr.P.C., he gets the power to investigate the crime rep
